Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Advent Security Services – Queensland [2001] QIRC 86 (2001) 167 QGIG 185

29 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 185 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Advent Security Services – Queensland (No. W224 of 2000) COMMISSIONER ASBURY 19 June 2001 Wages Claim – Issue of correct employer – Evidence in relation to correct employer – Wages claim being pursued by Department of Employment, Training and Industrial Relations against another employer – Respondent’s argument accepted – Application granted with respect to period when respondent found to have employed applicant. DECISION The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees, has made an application, seeking an Order pursuant to s. 278 of the Industrial Relations Act 1999 that Advent Security Services – Queensland pay unpaid wages to Ms Josephine Bowden. The application was amended during the course of the proceedings, with the agreement of the respondent, so that the amount claimed was $388.89. The respondent in this case concedes that an underpayment has occurred in relation to the terms of the Security Industry (Contractors) Award – State, but claims that Advent Security Services – Queensland (the respondent) did not commence to employ Ms Bowden until July 2000. Prior to that date, the respondent contends that Ms Bowden was employed by a company called Mission Security, which had a contract with the respondent, to provide security services at the Brisbane Cricket Ground. Mr Benney, the Managing Director of the respondent, claims that his Company is responsible for the underpayment of Ms Bowden from July 2000 until September 2000, and not for the entire period claimed by the applicant. The central issue between the parties is when Ms Bowden commenced employment with the respondent. The case for the applicant is that she was employed by the respondent from 8 April 2000 until 5 August 2000. The applicant said that Ms Bowden was employed as a security guard at the Brisbane Cricket Ground for home matches played by the Brisbane Lions. Under cross-examination, Ms Bowden said that she was interviewed for her position by Ms Sonia Stewart, the owner of a company called Mission Security. Ms Bowden said that it was her understanding that Ms Stewart was interviewing her on behalf of the respondent. Ms Bowden received a letter in March 2000 from Mr Richard Turner, on Advent Security letterhead (Exhibit A2), which said inter alia:– “Hello Josephine Congratulations on your appointment as a security officer with Advent Security, Queensland. I would like to take this opportunity to welcome you to the Advent team and our first major contract in Queensland – AFL at the Gabba. Your personal contribution to the successful provision of Security for the Brisbane Lions and the Gabba will have a direct bearing on the potential for future clients, contracts and venues ….”. Mr Benney denied that this letter constituted a contract of employment. Rather, he contended that at the time the letter was written, Mr Turner had been employed by Mission Security. The purpose of the letter had been to invite Ms Bowden to a “bonding session” to explain to Ms Bowden (and other employees) how “Advent Security runs the business as opposed to what they do with Mission Security.”. It is contended for the respondent that a contractual arrangement had been entered into with Mission Security, whereby Mission Security would supply labour to undertake work on a subcontract basis, for the respondent at the Brisbane Cricket Ground. This contractual arrangement had not been put into writing, but had been established on the basis of “a handshake”. Mr Benney said that he was not a Director or owner of Mission Security, and had no relationship with that Company other than agreements from time to time for the supply of labour. Ms Bowden received payslips which stated that the employer was Advent Security Services. These payslips were tendered as Exhibit A3. Ms Bowden said that these payslips were the only type that she had received during the entire period of her employment. However, the latest payslip produced by Ms Bowden was for the week ending 7 July 2000. Ms Bowden said that this was due to the fact that her house had been burgled and the payslips for the remainder of her employment with Advent Security Services had gone missing. The respondent contends that the payslips produced by Ms Bowden were not in the format which was used by Advent Security Services, and maintained that Ms Bowden had been supplied with payslips in the Advent Security Services format after 2 July 2000, when she had commenced employment with that Company. Mr Benney said that he had become aware in June 2000, of underpayment of wages claims being pursued by the Department of Employment, Training and Industrial Relations (the Department) against Mission Security. Advent Security Services had then commenced to directly employ security guards at the Brisbane Cricket Ground from 2 July 2000, and to pay those employees in accordance with the rates advised by the Department. Mr Benney said that it was his understanding that the Department was pursuing underpayment of wages claims with Mission Security for the period prior to 2 July 2000. During her evidence in chief, Ms Bowden was not asked about a number of issues such as the clothing that she wore while working at the Brisbane Cricket Ground or whether the Department was pursuing a wages claim on her behalf against Mission Security. In the interests of ensuring that all relevant evidence was before me, Ms Bowden was recalled to give evidence about these matters, following the evidence of Mr Benney. During the period of her employment, Ms Bowden said that she wore clothing bearing the logo of Advent Security Services. Further, Ms Bowden denied that the Department was pursuing a wages claim on her behalf for the period covered by the claim before me, against Mission Security. The fact that Ms Bowden had some knowledge of the wages claim against Mission Security, however, can be seen from her earlier evidence, that she had forwarded the letter from Mr Turner to Mission Security “as they needed it for their case as well.”. This information was provided in response to a question from me about some handwriting on the top of the letter which was Exhibit A2. -- 1 of 2 -- 186 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 June, 2001 While the payslips that were tendered by Ms Bowden indicate that the employer was Advent Security Services, they also contain a reference to an Australian Company Number (ACN). Neither of the representatives of the parties put any evidence to me about the Company to which the ACN related. An adjournment was provided during which Mr Benney (who was then under cross-examination) established through a telephone call to his accountant, that the ACN on Ms Bowden’s payslips, was that of Mission Security. During that adjournment, I also took the step of having the Industrial Registrar verify the ACN on the payslip, and was advised that it was the ACN of Mission Security. In cases such as this, it is hardly surprising that employees such as Ms Bowden, are confused about the identity of their employer. Ms Bowden and the Union have obviously been under great difficulty in unravelling the relationship between Advent Security Services and Mission Security. However, after carefully considering the evidence and submissions of the parties, I am unable to be reasonably satisfied that Advent Security Services was the employer of Ms Bowden from April 2000. I find that Advent Security Services employed Ms Bowden from 2 July 2000, and accordingly the amount of the underpayment to Ms Bowden, for which Advent Security Services is responsible, is an amount of $116.76. Accordingly, I order that Advent Security Services pay to Ms Josephine Bowden the amount of $116.76 as unpaid wages, within seven days of the release of this decision. I note Mr Benney’s submission that a cheque for the amount of $150.00 had been forwarded to Ms Bowden at an earlier date, to settle her claim for underpayment, and to compensate her for telephone calls and other incidental expenses that she may have incurred in pursing the claim. While this cheque had been returned by the applicant, Mr Benney said that the offer of payment in this amount still stood. I.C. ASBURY, Commissioner. Released: 20 June 2001 Appearances:– Mr K. Crank, of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees for the applicant. Mr P. Benney and with him Mr R. Turner on behalf of Advent Security Services. -- 2 of 2 --